Insights

In brief

The case of Brooks Earthmoving & Quarries Pty Ltd v The Lockyer Valley Regional Council [2018] QPEC 51 concerned an originating application by Brooks Earthmoving & Quarries Pty Ltd (Applicant) to the Planning and Environment Court seeking declarations and orders in respect of a lapsed development permit for a material change of use and environmentally relevant activities for extractive industries (Development Approval). The land the subject of the Development Approval is located at 362 Seventeen Mile Road, Helidon (Land). 

The issues for the Court to decide relevantly included the following:

  1. whether there was a provision of an Act which conferred on the Court the power to grant the relief sought; and

  2. whether the relief sought should be granted.

The Court held that it had the required power under the combined effect of section 11(4) and section 76(6) of the Planning and Environment Court Act 2016 (PECA) and section 440 of the now repealed Sustainable Planning Act 2009 (SPA). After considering the circumstances of the Applicant's failure to address the lapsed Development Approval, the Court held that it was appropriate to grant the relief sought, being the revival, change and extension of the Development Approval. 

Development Approval lapsed due to the Applicant's misunderstanding

A related entity to the Applicant purchased the Land with the benefit of the Development Approval in December 2011 and the Applicant subsequently used the Land for extractive purposes only. Condition 4 of the Development Approval relevantly stated:

"The life of this development permit is limited to 31 December 2015 to coincide with the expiry of ML 50094 and 50110. After such time the landowner may lodge a new application to undertake further extractive industries on the subject land;"

The relevant matrix of approvals included the Development Approval, mining leases and a local law permit. The Applicant decided not to renew the mining leases, but before their expiry  enquired with the Lockyer Valley Regional Council about what steps were required to be taken to prevent the Development Approval from lapsing.

The Applicant misunderstood the advice that was provided and mistakenly believed that it could continue operating without relevantly renewing the Development Approval. Consequently, the Development Approval lapsed. 

Orders requested from the Court

The Applicant sought relief from the Court under the Planning Act 2016 (Planning Act) to the effect of the following:

  1. a declaration that the Development Approval had lapsed due to non-compliance with the requirements of the SPA;

  2. a declaration that the proposed changes to the Development Approval were minor changes;

  3. an order that the non-compliance be excused; and

  4. an order that the Development Approval be revived and relevantly amended to remove Condition 4. 

The Court noted that the nature of the relief sought by the Applicant was discretionary, and as such the Court was required to consider and determine the relief sought by the Applicant and whether the Court had the power to grant the relief. 

Court held that its power to grant relief under section 37 of the Planning Act for non-compliance in respect of the SPA was compromised by a recent Planning and Environment Court case

Section 37 of the PECA allows the Court to deal with non-compliance of a provision of the PECA or an "enabling Act". An "enabling Act" for the purposes of the PECA is an Act that confers jurisdiction on the Court.

With reference to the earlier case of Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21, the Court accepted the argument that the "SPA no longer (directly) conferred jurisdiction on this Court" (at [51]), as the SPA is now repealed. Therefore, the SPA is not an "enabling Act" for the purposes of section 37 the PECA. 

Thus, the Court held that section 37 was not available to the Applicant as a source of power that would have allowed the Court to grant the relief sought by the Applicant in respect of its non-compliance with the SPA. 

Court held that a combination of sections provided the necessary power to grant the relief sought

The Applicant sought to rely solely upon section 11(4) of the PECA for the power to grant the relief sought, which relevantly states that the Court may make an order about any declaration it makes. However, the Court held that section 11 alone did not provide the relevant power to grant the relief and went on to consider other sections that could provide the relevant excusatory power.

Analogous to section 37 of the PECA, the now repealed section 440 of the SPA allowed the Court to deal with non-compliance with the SPA. The Court held that "[t]he effect of section 76(6) of the PECA is to preserve the relevant operation of section 440 of the SPA" (at [28]), for the purpose of dealing with non-compliance with the SPA under the Planning Act. 

Therefore, the Court held that it was empowered to deal with the Applicant's non-compliance with the SPA, being the failure to apply for a permissible change to the Development Approval, "in the way the court considers appropriate" (at [29]), because of the combined effect of sections 11(4) and 76(6) of the PECA and section 440 of the SPA.   

Court used its discretion to consider whether to grant the relief sought by the Applicant

Being so empowered, the Court turned its attention to whether it should grant the requested relief. 

The Court determined the following:

  • the proposed change to the Development Approval would not change any referral agency conditions;
  • consent from the relevant landowner had been obtained; and 
  • by implication, the relevant department did not object to the requested relief. 

Furthermore, the Court was satisfied that the proposed change, relevantly including the deletion of Condition 4, was a minor change and did not result in a substantially different development. In such circumstances, and given the nature of the oversight by the Applicant, the Court held that it was appropriate to grant the relief sought.

Conclusion

The Court made declarations under section 11(1) of the PECA and orders pursuant to section 11(4) and section 76(6) of the PECA and section 440 of the SPA to the effect that the Development Approval was revived and amended in the way sought. 

 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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